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1 WHAT EVERY NEW LAWYER NEEDS TO KNOW AND HAVE TO WORK IN ASBESTOS LITIGATION - TRAINING AND ORIENTING ASBESTOS PERSONAL INJURY LITIGATORS BY JAMES H. CROSBY Crosby/ Saad & Beebe, P. C Dauphin Street, Suite 600 Mobile, Alabama /

2 f INTRODUCTION What follows are listings of various sources of information that will - it is hoped - benefit attorneys who are becoming involved in asbestos personal injury litigation. This is by no means an exhaustive list of the various sources that an attorney should be familiar with or consult prior to trials. Of course, one should become intimately familiar with a i 1-»! Plaintiff's medical record, a Defendant's historical documents, particular areas of medicine, and particular areas of State-of-the- Art which pertain to the specific case(s) prior to trial. Other presentations and outlines provided at this seminar will supplement the general information provided here. B-3

5 THE HISTORY OF ASBESTOS LITIGATION Background o o o o o o The term "asbestosis" appears for the first time in a published British medical case report of an asbestos textile worker. 1930's-1940's. Silicosis claims helped influence many state legislatures to adopt workers compensation regulations allowing scheduled recovery for occupational diseases. Some including silicosis and asbestosis Johns-Manville settles numerous asbestos factory employees' claims allegedly arising from asbestos exposure in a manufacturing facility. [The plaintiff's attorney reportedly agrees not to participate bringing about additional claims.] The United States Public Health Services publishes Public Health Bulletin No. 241 (a Surgeon General's Report). This publication sets forth a MAC (Maximal Allowable Concentration) or TLV (Threshold Limit Value) for asbestos dust of 5,000,000 particles per cubic foot The MAC or TLV for asbestos dust of 5,000,000 particles per cubic foot as a safe limit is republished in Public Health Bulletin No The research facilities at Saranac Laboratories conducted studies on a new rigid high temperature insulation product developed by Owens Illinois - Kaylo, which had a temperature limit of 1200 fahrenheit. These studies are the only known premarketing health studies on any asbestos containing insulation product at that time Professor Phillip Drinker (a professor at the Harvard School of Industrial Hygiene and developer of the "iron lung") publishes a study concluding that pipe covering in a shipyard is not a dangerous occupation. The American Conference of Governmental Industrial Hygienists (ACGIH) adopts MAC or TLV of 5 million particles per cubic foot for asbestos dust. This remains the TLV adopted by members of this organization consisting of various governmental industrial hygienists until B-6

6 1! o o The United States Government adopts by regulation the asbestos dust TLV of 5 million particles per cubic foot. States begin adopting the same TLV Dr. Gerrit W. H. Schepers, Director of the Saranac Laboratories publishes the Kaylo Study. The published study points out that not even pre-cancerous changes could be postulated in the cells of the animals utilized in the study. o i960. The United States Government, recommends the asbestos dust TLV of 5 million particles per cubic foot for work practices associated with shipbuilding and ship repair. Various states continue to adopt the TLV. o Gladys Faci.ane sues numerous cigarette and asbestos manufacturers for her insulator husband's death. o 1964 through Studies conducted in part by Dr. Irving J. Selikoff are published. Certain of these studies were undertaken "to determine" if insulators were at an increased risk for asbestosis and allied diseases. o December Claude Tomplait. an insulator files a lawsuit seeking damages for asbestosis from 11 asbestos products manufacturers in the Eastern District of Texas. o Prior to the Tomplait trial several defendants were dismissed for various causes and five defendants reached a compromise that denied liability. The trial concluded on May 19, 1969 in a verdict for the remaining defendant. o Clarence Borel, an insulator, filed a lawsuit in Federal Court in Texas claiming asbestos related disease. Again, some defendants settled and one defendant was ultimately dismissed. The jury determined that none of the defendants had committed a gross negligence, that Borel was guilty of contributory negligence but that the six remaining defendants had breached warranties and were strictly liable. The jury and judge awarded damages of approximately $78,000. The award was affirmed on appeal. fborel v. Fibreboard. 493 F.2d 1076, (5th Cir. 1973), cert, denied. 419 U.S. 869 (1974) o OSHA adopts TLV of 12 fiber per cc of air as initial TLV. OSHA then lowers TLV to 5 fiber per cc. o John A. Karjala filed a lawsuit in Federal Court in Minnesota after his attorney had reportedly talked to Mr. Borel's attorney. Karjala sued some of the same defendants as Borel. Karjala, like Borel, claims he had

7 contracted mesothelioma. All defendants except Johns- Manville either settled or were dismissed. Karjala's $200,000 verdict against Johns-Manville was affirmed on appeal. Karnala v.j-m. 523 F.2d 155 (1975). o Pittsburgh Corning closed and dismantled its plant located in Tyler, Texas. Pittsburgh coming's actions followed investigations by government occupational and health officials. The plant was originally erected by Unarco when it closed its Patterson, New Jersey plant in The Patterson plant is the subject of certain Selikoff studies Pursuant to OSHA, federal regulations were adopted requiring a cautionary statement on containers of asbestos-containing materials that exceed the TS»V when manipulated. OSHA continues to adopt ACGIH TLV A s. O Yandle V. PPG. 65 F.R.D. 566 (E.D. Tex. 1974). A plaintiff's attorney having been retained by seven or eight prospective plaintiffs who had been employed at the Pittsburgh Corning/Unarco plant in Tyler, Texas, filed a class action in the Federal Court in Tyler on behalf of approximately 570 plant employees. The court denied class action status. Settlement was reportedly reached in the amount of $20 million to be paid by the various defendants including the plaintiff's union and the United States Government. o A Pittsburgh Plaintiff's attorney filed lawsuits on behalf of Carollo and DeRocco, two pipecoverers at the Wheeling-Pittsburgh Steel Corporation plant. During the course of discovery in these cases, testimony of former J-M medical director, Dr. Kenneth Smith, was developed wherein Dr. Smith testified that in the 1950's he had discussed with Manville management whether to place warning labels on asbestos insulation products produced by J-M. Carollo v. Forty-EightInsulations Cq^, 252 Pa. Super 422, 381 A.2d 990 (Pa. 1977). o A Plaintiff's attorney filed a complaint in Federal District Court in New Jersey on behalf of 286 former R-M employees. Discovery uncovers "the Sumner Simpson papers", the "smoking gun" purporting to unveil coverup effort by R-M, Johns-Manville, Metropolitan Life, and certain asbestos-containing product producers. Additional documents were discovered revealing an arrangement between J-M and several other asbestoscontaining product producers regarding research to study the health aspects of asbestos. A condition of the study was that sponsors of the study were to approve any publication. B-8

8 The cases reportedly settled for $15.1 million in The plaintiff's take home award which was allotted among 683 plaintiffs in payments that are said to have ranged between $1,250 to more than $200,000. o A plaintiff's attorney in Knoxville, TN, is retained by an asbestos insulator. He calls Borel's attorney's partner to investigate potential defendants and strategy. The defendants who pursued the case to trial prevailed in November of o 1975 through A California Plaintiff's attorney is retained by approximately 30 workers from.a J-M Pittsburgh (California) plant and filed claims against the J-M plant physician and others. Discovery revealed more potentially damning documents and information reflecting upon J-M's knowledge of the potential adverse health effects of exposure to asbestos. Among these were two settled third-party lawsuits for negligence and breach of warranty filed against J-M by insulators in 1957 and Apparently, in part as a result of the testimony of a former J-M employee reportedly to the effect that J-M had a policy of not revealing adverse health conditions to its employees, 80 former J-M employees of the Pittsburgh plant filed a $10 million punitive damage claim against J-M. o The minutes of the Textile Institute (ATI) are discovered. These purport to show early knowledge by the members of asbestos disease occurring in those exposed to their products. o A meeting is held in Atlanta which begins the process culminating in an organization of plaintiffs' attorneys entitled the Litigation Group. o Plaintiffs' attorneys and "investigator/expert" Barry Castleman undertook research and located some workers compensation claims filed against various producers that also had insulator contract units. Coverage disputes between certain primary carriers and their insureds resulted in lawsuits. One dispute centered upon the "exposure theory" versus "manifestation theory". The "exposure theory" was adopted by the trial court and affirmed by the Sixth Circuit. INA v. Forty- Eight Insulations Co F.2d 814 (6th Cir.), cert, denied. 454 U.S (1981). B-9

9 Secretary of HEW, Joseph A. Californo, Jr., issued a statement concerning the biological effects of asbestos and ordered the Surgeon General of the U.S. to send an advisory letter to all 400,000 physicians in the nation describing the claimed health risk posed by asbestos. Congresswoman Millicent Fenwick of New Jersey introduced the bill known as the Health Hazards Compensation Act. The bill was not passed. The text of the report of an industrial hygienist, W.C.L. Hemeon for the ATI was discovered. It is contended that this report demonstrated that the members of the 7vTI were aware that the asbestos TLV was excessive. This report, containing no citations, was prepared in x^1955 in a published text, Hemeon cited the asbestos TLV v as 5 million particles per cubic foot. Dr. Gerrit W. H. Schepers revealed to Plaintiffs 7 attorneys his relationship with Saranac, J-M, and Owens- Illinois. Keene (approximately 500 cases pending) filed suit for declaratory judgment against INA and other insurance companies. The Court of Appeals for the District of Columbia adopted the "triple trigger" (a modified version of the "exposure theory") ruling that insurance coverage could be "triggered" by: (1) the initial inhalation of asbestos fibers, (2) by exposure-in-residence to the fibers, and (3) by the manifestation of asbestos disease. As of the fourth quarter of 1981, approximately 20 declaratory judgment actions relating to insurance coverage matters were pending nationwide, nevertheless the U.S. Supreme Court declined to hear an appeal of either Keene v. INA. 667 F.2d 1034 (D.C. Cir. 1981), cert, denied. 455 U. S (1982) or INA v. Forty-Eight Insulations Co., 657 F.2d 814 (6th Cir.), cert, denied, 454 U.S (1981). o o 1979 through Various attempts are made to seek damages, contribution and/or indemnity from the United States government by plaintiffs and/or defendants/thirdparty plaintiffs. Generally speaking, results of these efforts have been favorable to the government. Late 1970's - early 1980's. Plaintiffs unsuccessfully attempt to have various class action lawsuits certified or to have the asbestos cases supervised by the Multi- District Litigation Panel J-M files a lawsuit (declaratory-judgment) in state court in San Francisco against Home Insurance Company seeking coverage. 3-10

10 o The widow of an insulator who died of mesothelioma, received a $3 million compensatory damage award from a jury in Beaumont, Texas. The award was reduced by Judge Robert Parker to $1.5 million. Judge Parker had refused to allow the jury to consider punitive damages in this trial against Nicolet Industries. Migues v. Fibreboard Corp F.2d 1182 (5th Cir. (1981).! o Vandiver Brown, a former attorney with J-M, who had been thought dead, is found alive and apparently mentally incompetent in Edinburgh, Scotland. Brown ^ actually died on September 2, 1983, at the age of 82. f November Speake v. j-m f California (plant worker cases) begins trial. At the conclusion of the trial! which included the testimony of Dr. Paul Kotin and J-M I CEO John McKinney, the jury returned a verdict for Mr. I Speake and against J-M in the amount of $150,000 in f compensatory damages. No punitive damages were awarded. I Commercial Union calls for federal legislation in its J position paper ": A social problem." j '! o 1981 through J-M goes to trial approximately 65 r( times losing punitive damages a total of 10 times in a '. total amount reportedly of $6 million. Migues is retried before Judge Parker with four other cases before five separate juries simultaneously. Of the five verdicts returned, some were for the plaintiff while others were for the defendant, hence, collateral estoppel could not be applied against the defendants. Increasing compensatory damage awards and an increasing number of punitive damages awards are apparently utilized by J-M to support its filing for reorganization under Chapter 11 of the Federal Bankruptcy Code on August 26, o 1983 through As a result of bankruptcy proceedings, J-M is severed from pending cases and future filings. Limited experimentation continues with new trial formats, including reversed bifurcation, multiple juries for multiple cases tried simultaneously in a single courtroom and trials of groups of cases (usually less than 10) before a single jury on all issues. o April through May Fifty (50) casss are consolidated for trial on the issues of liability and punitive damages in Federal District Court in Galveston, Texas. The jury determines that labeling by January 1, 1967 was timely and adequate. B-I:

11 1985. The Claims Facility is established, thereby averting numerous declaratory judgment actions relating to insurance coverage issues and potentially reducing defendants' litigation costs through Plaintiffs' attorneys screening procedures are in place or expanded for reviewing numerous present and previous workers engaged in the construction trades and trades allied to the construction and shipbuilding trades. New filings in 1985 are approximately 10,000, in 1986 approximately 17,000 and in 1987 approximately 22,000 cases. The "case mix" has shifted dramatically from predominately insulator/shipyard workers to predominately non-insulator cases and individuals with more peripheral exposure. J* April - May Judge Parker presides over a class action trial of approximately 750 plaintiffs alleging exposure to asbestos from a variety of occupations and circumstances. The cases are compromised, the terms of which provide for Alternative Dispute Resolution and a waiver by plaintiffs of any entitlement to punitive damages. o o o May 1987 through July, Ninety-two (92) cases are consolidated for trial on the issue of liability and punitive damages in the Federal District Court in Galveston, Texas. The jury determines that the plaintiffs are not entitled to any punitive damages. October Claims Facility dissolves New case filings reach approximately 22,000 cases through present. Most courts continue to try cases either in a reverse bifurcation or a traditional format. Some courts are "clustering" groups of cases for trials on all issues or in a reverse bifurcation format. A very limited number of courts are attempting "novel methods" of disposition by mass consolidations or class actions. o Manville emerges from bankruptcy and The Manville Trust begins paying plaintiffs on a FIFO basis. The average payment per case is said to exceed $40,000. It is reported that the bulk of the cases first settled by the Trust are the same cases resolved during bankruptcy where non-bankrupt defendants - for the large part - had paid the J-M share. o New case filings again reach approximately 22,000 cases.

12 1! o A Maryland state court judge consolidates up to 9,000 cases pending in the various state courts in Maryland scheduling the consolidated cases for trial on the issues of liability and punitive damages in April o Judge Weinstein begins re-examining the Manville bankruptcy matter. Judges Weinstein / Lambros and Parker are all attempting or threatening to schedule national class actions. o Dartez is reversed for the third time by the Fifth Circuit Court of Appeals. Dartez v. Owens-Illinois. 910 F.2d 1291, 5th Cir., A comprehensive history of the asbestos textile industry in the United States can be found in a series of ASBESTOS magazine articles beginning August 1970 and concluding in September B-I3

13 II A. GENERAL INFORMATION TEXTS What follows is a listing of various publications that have appeared through the last several years dealing with asbestos and health. It is felt that if one has familiarity with these texts one will be generally familiar with asbestos medicine. Not all of these publications are recognized as accepted medical and scientific treatises. In fact, at least two of the publications cited are included simply because they portray what plaintiffs generally contend in court. 1. Cancer Facts and Figures 1990 American Cancer Society 2. First Annual Report on Carcinogens Department of Health and Human Services Prepared by National Toxicology Program U. S. Public Health Service July Volume 1 3. Second Annual Report on Carcinogens U. S. Department of Health and Human Services Public Health Service December Occupational Respiratory Diseases -Associated Disease Reprinted from Maxcy-Rosenau Public Health and Preventive Medicine llth ed The Health Consequences of Smoking - Cancer A Report of the Surgeon General U. S. Department of Health and Human Services Public Health Service Office on Smoking and Health, Update - Cancer and Occupation: A Study of Mortality Among Petroleum Refinery and Petrochemical Workers National Cancer Institute office of Cancer Communications April 1982

14 7. Workplace Exposure to NIOSH, U. S. Department of Health and Human Services Public Health Service Centers for Disease Control National Institute for Occupational Safety and Health DHHS (NIOSH) Publication No , November Diagnosis of Diseases of the chest Third Edition, 1988 Eraser and Pare Volume I-IV W. B. Saunders Company 9. Health Hazards of Exposure Annals of the New York Academy of Sciences ^ Volume 330 (1979) 10. Biological Effects of Annals of the New York Academy of Sciences Volume 132 (1965) 11. Disability Compensation for -Associated Diseases in the United States (1982) by Irving J. Selikoff, M.D. Environmental Sciences Laboratory Mount Sinai School of Medicine of the City University of New York 12. The Health Consequences of Smoking: The Changing Cigarette - A Report of the surgeon General U. S. Department of Health and Human Services Public Health Service, 1981 DHHS (PHS) and Disease by Irving J. Selikoff and Douglas H. K. Lee Academic Press, Scientific Advances in 1967 to 1985 by A. A. Hodgson Anjalena Publications Alternatives to and Products by A. A. Hodgson Anjalena Publications Ltd., Journal of Environmental Pathology and Toxicology Volume 3, Number 4, March 1980 Edited by H. G. Demopoulos, M.D. and M. A. Mehlman, Ph.D. Official Organ of the American College of Toxicology, Special Issue B-16

18 48. and Other Natural Mineral Fibres published under the joint sponsorship of the United Nations Environment Programme, the International Labor Organization and the World Health Organization Involuntary Smoking - A Report of the Surgeon General United States Department of Health, Education and Welfare "Perspectives on Toxicological Risk: An Example: Food Borne Carcinogenic Risk," Robert J. Scheuplein, Ph.D. Office of Toxicological Sciences Center for Food Safety and Applied Nutrition * Food & Drug Administration, Washington, D.C. 51. Health Effects of And of Some Other Minerals and Fibres by Premysl V. Pelnar, M. D. Volume I, II, III 1988

19 B-21 t

20 II B. SIGNIFICANT LEARNED TREATISES RELATING TO ASBESTOS AND DISEASE "Pulmonary is" by W. E. Cooke (1927) "Report on Effects of Dust On The Lung and Dust Suppression In The Industry" by E. R. A. Merewether, M.D. and C. W. Price (1930) "Effects Of The Inhalation Of Dust On The Lungs Of Workers" by Lanza, et al (1935) *s "A Study Of is In The Textile Industry" by Dreessen, et al (1938) "Silicosis and is" edited by A. J. Lanza, 1938 "A Health Study Of Pipe Covering Operations In Constructing Naval Vessels" by Fleischer, et al (1946) "is And Cancer Of The Lung" Editorial, Jama (1949) "Mortality From Lung Cancer In Workers" by Richard Doll (1935) "An Epidemiological Study Of Lung Cancer In Miners" by Braun and Truan (1958) , 12 13, "Diffuse Pleural Mesothelioma And Exposure In The North Western Cape Province" by J. C. Wagner, C. A. Sleggs and Paul Marchand (1960) " Exposure And Neoplasia" by Selikoff, et al (1964) "The Occurrence Of is Among Insulation Workers In The United States" by Selikoff, Churg and Hammond (1965) "The Work Environment Of Insulating Workers" by Balzer and Cooper (1968) B-22

21 14. "Diffuse Malignant Mesothelioma Of The Pleura: A Review Of 37 Cases" by Oels, et al (1971) 15. "Biological Effects Of - Proceedings Of A Working Conference Held At The International Agency For Research on Cancer", Lyon, France, 2-6 October "Carcinogenicity Of Amosite " by selikoff, et al (1972) 17. "Lung Function Profiles In The Chrysotile Mines & Mills of Quebec" by Margaret Becklake Chest 69(2) Feb 1976 Supp 18. The Complexities in the Evaluation of Epidemiologic Data of Fiber-Exposed Populations by J. C. Wagner, reprinted from Dusts and Disease, "Mortality of Workers Certified By Pneumoconiosis Medical Panels as Having is" by G. Berry British Journal of Industrial Medicine Vol. 38, "The Pathology of -Associated Diseases Of The Lungs And Pleural Cavities: Diagnostic Criteria And Proposed Gratings Schema" by Craighead, et al (1982) 21. ": Historical Perspective" by Lawrence Garfinkel (1984) and " - An Industrial Asset With A Health Cost" by William R. Barclay, M.D. (1984) 22. "Non--Related Malignant Mesothelioma - A Review" by Peterson, et al (1984) 23. "The Origin And Basis Of Threshold Limit Values" by Jeffrey M. Paull (1984) 24. "The Diagnosis Of Non-Malignant Diseases Related To ". Am Rev Respir Dis, 1986; 134: Third International Conference on Environmental Lung Disease. Chest 91:2, February

24 II C. SUGGESTED JOURNALS FOR FREQUENT REVIEW There are dozens of medical and scientific journals that should be reviewed periodically. This is most easily done by reviewing MED-LINE and other computer data base services provided by the National Library of Medicine, 8600 Rockville Pike, Building 38, Bethesda, Maryland and others to anyone who wishes to subscribe. Subscriptions are usually reasonable. In addition to MED-LINE one should stay in contact with their various consultants to determine what text and publications have appeared that are of note in the profession. The following journals and/or articles are recommended for regular review: 1. American Journal of Industrial Medicine (Irving J. Selikoff, Editor in Chief), Wiley-Liss, Inc., Publisher, 41 E. llth Street, New York, New York, Chest (official publication of the American College of Chest Physicians), 911 Busse Highway, Park Ridge, Illinois, British Journal of Industrial Medicine, Box 560B, Kennebunkport, Maine, Journal of Occupational Medicine (JOM), Williams & Wilins, Publisher, 428 West Preston Street, Baltimore, Maryland, American Review of Respiratory Disease (official journal of the American Thoracic Society), ATS Subscription Office, 1740 Broadway, New York, New York, The Pneumoconioses, A. J. Lanza, M.D., Grune & Stratton, Publishers, 1963 B-26

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